If the clerk of courts e-mails you an order that your client must pay $1 million in attorney fees to the opposing party, but your spam filter catches the e-mail and then deletes it after 30 days without alerting you, and you therefore fail to appeal the order in time — well, your client may be out of luck, as a Florida court of appeals ruled recently. (There is a motion for rehearing pending.)

Spam canned?

The ruling thus far is a cautionary tale and shines a light on some ethics duties as they might apply to your process for handling and keeping on top of spam e-mail — especially the duties of diligence (Model Rule 1.3) and competence (Model Rule 1.1, and see cmt. 8 on technology).

The facts: Company sued Utility Authority, and Company won. Company’s Lawyer moved for attorney fees, and after more than a year, the trial court granted them — reportedly as high as $1 million. It’s worth noting that during the time that his client’s fee motion was pending, Company’s Lawyer had the firm’s paralegal check the court’s on-line docket every three weeks for a ruling.

When the court finally issued the ruling, the clerk e-mailed it to all counsel. Technology experts who later testified said that the e-mail server at the Utility Authority’s Lawyer’s firm received the e-mail. But the firm’s e-mail filtering system was configured to drop and permanently delete e-mails perceived to be spam without further alert.

Apparently that’s what happened to the e-mailed attorney-fee order. After 30 days passed without the fee award being paid (i.e. after the time to appeal the order had run), Company’s lawyers contacted opposing counsel.

No relief

The Utility Authority moved for relief from the judgment, arguing that its lawyers didn’t receive the order in time to file an appeal. The trial court rejected the argument, and the court of appeals agreed: this was not “mistake, inadvertence, surprise or excusable neglect,” it held. The Utility Authority’s Lawyer’s firm did receive the order — the equivalent, the court of appeals said, of placing a physical copy of the order in a mailbox. The e-mail just went right to spam, from where it apparently was deleted without further notice.

At the hearing on the motion, the law firm’s former IT consultant testified that he advised against that configuration; the firm rejected the advice, as well as advice to get a third-party vendor to handle spam filtering, and advice to get an online backup system that would have cost $700-1200 per year. Financial considerations played a part in these decisions, the court found.

The decision to use this filtering configuration despite warning was a conscious decision to use “a defective e-mail system without any safeguards or oversight in order to save money. Such a decision cannot constitute excusable neglect,” said the court of appeals.

Adding further sting, the court noted the Company’s Lawyer had a paralegal regularly check the court’s online docket during the long pendency of the fee motion. If the Utility Company’s Lawyer had done something similar, the court said, he would have received notice of the fee order in time to appeal. “The neglect” of that duty “was not excusable.”

Spam: not tasty but good to check

The harsh result here may yet be ameliorated if the court of appeals grants rehearing. In the meantime, however, the scary scenario points to the need to pay attention to your firm’s technology and processes for handling spam. And old-fashioned procedures like checking the court’s docket can also help avoid an unpalatable spam situation.

Karen is a member of Thompson Hine’s business litigation group. She is a member and former chair of the Certified Grievance Committee of the Cleveland Metropolitan Bar Association, and a member and past chair of the Ohio State Bar Association’s Ethics Committee. She also chairs that committee’s Ethics Opinions subcommittee, and has authored several ethics opinions on behalf of the OSBA interpreting the Ohio Rules of Professional Conduct. Karen also is an adjunct professor at Cleveland-Marshall College of Law, teaching legal ethics.

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